10:26, October 07 119 0 theguardian.com

2020-10-07 10:26:05
Court hears children cannot consent to puberty blockers

The argument that children can give informed consent to the prescription of puberty blockers is a “fairy tale”, the high court has been told.

Keira Bell, a 23-year-old woman who began taking puberty blockers when she was 16 before “detransitioning” in her early 20s, and the mother of a 16-year-old girl with autism who is waiting for treatment are suing the Tavistock and Portman NHS trust, which runs the UK’s only gender identity development service (GIDS) for children.

On Wednesday, lawyers for the pair argued that children who had not yet gone through puberty were not able to properly understand the “lifelong medical, psychological and emotional implications” of taking puberty blockers and cross-sex hormones.

Lawyers for the trust argue that the use of puberty blockers is rarely used in children under the age of 13 and is a “safe and reversible treatment with a well-established history”.

At a hearing in London, the pair’s barrister, Jeremy Hyam QC, argued that in 97% of cases the use of puberty blockers in children led to further treatment, and argued that the use of hormone blockers to address gender dysphoria did “not have any adequate base to support it”.

He argued that “the effect of hormone blockers on the intensity, duration and outcome of adolescent development is largely unknown”, adding: “There is evidence that hormone blockers can have significant side-effects, including loss of fertility and sexual function and decreased bone density.”

The idea that young people were fully able to give consent was “simply a fairy tale”, he said. “Nobody could sensibly think that a child of 13 or under who cannot in law give valid consent to sexual acts could possibly give informed consent to treatment of dubious benefits … and lifelong consequences.”

Hyam said the case was focused on whether children could give informed consent to treatment and whether the information given to them is appropriate. “Young and short on relevant life experience, we say there is just no way they can make informed decision about the loss of sexual function,” he said. “It’s just not credible.”

Hyam told the court that referrals to GIDS had gone through a “twentyfold increase”, from 97 in 2009 to 2,590 in 2018, and that the percentage of natal females had increased during that time and made up 76% of cases. The youngest case of a child referred to the Tavistock in April 2020 was 10 while the average age was 15 and four months, he said.

In written submissions, Hyam said: “That children are not capable of giving informed consent to undergo a type of medical intervention about which the evidence base is poor, the risks and potential side-effects are still largely unknown, and which is likely to set them on a path towards permanent and life-altering physical, psychological, emotional and developmental consequences … is the common-sense and obvious position.”

In a statement in the submission, Bell said she had been left with “no breasts, a deep voice, body hair, a beard, affected sexual function and who knows what else that has not been discovered”. She had to live with the fact that if she had children in the future, she would not be able to breastfeed. “I made a brash decision as a teenager (as a lot of teenagers do) trying to find confidence and happiness, except now the rest of my life will be negatively affected,” she said.

Fenella Morris QC, representing the trust, described the argument that children could not give informed consent to being prescribed hormone blockers as “a radical proposition”.

In written submissions, she argued that the claimants sought to “impose a blanket exclusion” on children under the age of 18 being able to consent to medical treatment. Morris, whose spoken arguments will follow in the case, said the majority of children referred to GIDS between March 2019 and 2020 were over 12, with only 13 of the children referred being under the age of 13.

She accepted that hormone blockers were “experimental” but argued their use had been “widely researched and debated for three decades”, adding: “It is a safe and reversible treatment with a well-established history.”

The hearing before Dame Victoria Sharp, Mr Justice Lewis and Mrs Justice Lieven is expected to last two days, with judgment expected at a later date. The hearing continues.